This is a
review of a published court of appeals decision,
The plaintiff, Jan K. Jenson, became the clerk-treasurer of the Village of Solon Springs in 1978 by appointment of the village board. Insofar as this record on summary judgment and depositions of Jenson, the plaintiff, and Little, the defendant, indicate, no events of significance to this litigation occurred until April of 1985, when Guy Little, Sr., was elected president and trustee of the villаge board.
Immediately after the commencement of Little's term in 1985 as president, the plaintiff alleges Little commenced a course of conduct that inflicted emotional distress upon her which led to her alleged disability and the commencement of the lawsuit.
In her deposition, Jenson states that, prior to Little's becoming village president, she had no contact with him except for seeing him on the street or when he came
Upon assuming office, Little immediately proposed that Jenson's work hours be cut in half — this despite the fact she had an existing contract signed by the prior village president and approved by the village board. The depositions reveal, without dispute, that Little told the village board that Jenson was doing a bad job and that he attacked her work performance at a public village board meeting. He accused her of being dishonest and a liar. Jenson's deposition also asserts that these accusations were made at the board meeting, before the board meeting, and immediately afterwards, and that Little was talking about her in respect to his relationship with her in his capacity as village president. She acknowledged that she had no relationship with Little except in the job situation, and that the altercation was about her job performance and hours of work. While Jenson clearly stated that Little "slandered" her on other than work occasions or at village board meetings, the accusations were all work related.
Although Jenson received the suрport of the village board, she asserts the conduct of Little caused her physical and emotional problems, which on one occasion required her to take a six-week leave of absence.
Action was brought in July of 1986 against Little for the intentional infliction of emotional distress. Allegation 8 of the complaint stated:
8. Since the 19th day of April, 1985, the defendant Guy Little Sr. with intent to cause the plaintiff emotional distress, has engaged in gross, extreme, and outrageous conduct in complete denial of the plaintiffs dignity as a person, all without privilege so to do, including, among other acts, the unjustified and unjustifiable issuance of threats of the termination оf the plaintiff as such clerk-treasurer, public issuance in an oppressively loud and overbearing voice of false accusations that the plaintiff is a liar, berating the plaintiff in a loud and intimidating voice, in public, and with violent gestures for plaintiffs refusal to follow unlawful and wrongful orders issued by the defendant Guy Little Sr. falsely impugning the integrity of the plaintiff in a loud, overbearing, demeaning, and vituperative manner in the presence and hearing of other employees of the said village and members of the public, the public issuance of false and degrading statements to the effect that the plaintiff had authored and submitted false financial reports with respeсt to the affairs of the said village, issuance of false public statements to the effect that the plaintiff, in her capacity as such clerk-treasurer, is incompetent and dishonest, unjustified and deliberate refusal to cooperate with the plaintiff in the conduct of the business of the said village thereby subjecting the plaintiff to unwarranted public criticism and opprobrium, and unjustified denial or withholding of compensation and other benefits and things of value to which the plaintiff is entitled by virtue and under the terms of her contract of employment as such clerk-treasurer of said village.
Jenson not only took sick leave, which she claims was made necessаry by the conduct of Little, but also asserted periods of malaise and depression. Eventually she resigned in December of 1986, when the village board concluded that the next clerk-treasurer would be elected.
The action was brought not only against Little but against three insurance companies which insured Little and the Village of Solon Springs in the event of covered misconduct.
Originally, defendants moved to dismiss for failure to state a claim upon which relief could be granted. This motion was denied.
In October of 1988, the defendants filed a motion for summary judgment dismissing the complaint оn the grounds that the plaintiffs exclusive remedy is under the WCA, the claim having been brought against a co-employee, and that there were no genuine issues of material fact. After several hearings, Judge Joseph A. McDonald concluded that the action was exclusively cognizable under the WCA and that Little and Jenson were co-employees of the Village of Solon Springs. Judge McDonald also held that the exception from the exclusivity provision contained in sec. 102.03(2), Stats., where the injury results from an assault intended to cause "bodily harm" was inapplicable. Summary judgment was entered dismissing the complaint of Jan Jenson.
On appeal to the court of аppeals by Jenson, that court affirmed. Contrary to the assertions of the plaintiff, the court of appeals held that intentional injuries are within the purview of the WCA, that emotional injuries are specifically covered, and that the assault exemption from the exclusive remedy afforded by sec. 102.03(2), Stats., was inapplicable under the facts of this case. 1
The basic question is whether the claim of Jan Jen-son is cognizable under the provisions of the WCA. If it is, then, under the provisions of sec. 102.03(2), Stats., workers compensation "shall be the exclusive remedy against the employer, any other employe of the same employer . . .." 2
The plaintiff makes various arguments that the claim is not one where there is the right to recovery under the WCA and, therefore, her common law action against Little may proceed.
It is asserted by Jenson that the action of Guy Little was intentional and only unintentional conduct gives rise to worker compensation liability; that the type of injury — mental distress — allegedly sustained is not of a kind that is compensable under the WCA; that she was not performing services "growing out of and incidental to his or her employment," as required by sec. 102.03(l)(c)l of the WCA; that the "accident" causing injury did not arise out of the employment, as required by sec. 102.03(1)(e) of the WCA; and that Little's conduct constituted an assault intended to cause bodily harm. 3
It should be emphasized that it is Jenson who asserts a common law claim for the obvious reason that recovery under the WCA is only in a scheduled amount while the common law claim permits whatever recovery a jury may award that is supported by the evidence. It is Little who has asserted the defense that the common law action must be dismissed because of the exclusivity provision of the WCA.
Under the facts of this case Little is not the employer of Jenson — despite the fact he is the village president. The two, as was acknowledged at oral argu
One of the conditions for recovery under the Act is that the claimant "sustains an injury." Section 102.03(l)(a). Section 102.01(2)(c) states: " 'Injury' means mental or physical harm to an employe cаused by accident or disease." The statute applicable further included the provision: " 'Injury' includes mental harm or emotional stress or strain without physical trauma, if it arises from exposure to conditions or circumstances beyond those common to occupational or nonoccupa-tionallife." Section 102.01(2)(c). 4
Jenson claims she should not be confined to her remedies under the WCA because no injuries, even those otherwise compensable, are covered by the Act if they
In
Jadofsky v. Iowa Kemper Ins. Co.,
In
School District No. 1, Village of Brown Deer v. ILHR Dept.,
This court has previously defined "accident" in terms of the workmen's compensation statute as a fortuitous event unexpected or unforeseen by the injured person, even though the injury is intentionally inflicted by another. [Emphasis supplied.]
School District No. 1
emphasized that whether the conduct is an accident must be viewed from the perspective of the injured party. It pointed out that, if the result
In
John H. Kaiser Lumber Co. v. Industrial Comm.,
The injury was caused by accident. An accident is a fortuitous event, unexpected and unforeseen by the injured person. The Industrial Commission early held that even though the injury might be intentionally inflicted by another, if the injury is unexpected and unforeseen by the person injured it was an accident within the compensation act....
There are numerous cases where Wisconsin courts, without discussing whether "intentional" or "unintentional" was a criterion, held that WCA coverage applied in cases where the injury was intentionally caused.
Applied Plastics, Inc. v. LIRC,
Jenson asserts that Little intentionally caused her injuries. As a matter of law we conclude such conduct constitutes an accident as the term is used under the provisions of the WCA. 6
Jenson also asserts that the injury alleged, emotional distress, is not an injury that is compensable under the WCA and therefore not subject to the exclusivity provision. Jenson's complaint asserts:
9. The aforesaid intentional, gross, extreme, and outrageous conduct of the defendant Guy Little Sr. is the direct and proximate cause of the extreme disabling emotional distress suffered by the plaintiff as herein described аnd the consequences thereof.
10. As the sole, direct, and proximate result of such course of conduct on the part of the defendant Guy Little Sr. the plaintiff has suffered extreme and disabling emotional distress including extreme anxiety and depression whereby the plaintiff has been deprived of her dignity as a person, has been rendered incapable, both emotionally and physically, from functioning in her vocational and nonvocational relationships, affairs, and pursuits of life, and has undergone and still undergoes severe and extreme mental and emotional pain, anxiety, and fear of such substantial quantity and enduring quality that no reasonable pеrson could or should be expected to undergo the same. Further as the sole, direct, and proximate result of such conduct on the part of the defendant Guy Little Sr. the plaintiff has been and will be in the future obliged to undergo professional medical and psychological care, treatment, and attendance, and to take drugs, medications, and the like, and to pay and incur substantial expense therefor. By reason of the foregoing, the plaintiff has been damaged in a sum exceeding $500,000.00, no part of which has been paid.
The assertion of Jenson is that the injury she sustained was extreme and disabling emotional distress, an injury, she asserts, that is not compеnsable under the WCA. We conclude that it is. Injury under sec. 102.01(2)(c), Stats., includes "mental harm.” It is further explained in the same subsection that: " 'Injury'
includes mental harm or emotional stress or strain without physical trauma, if it arises from exposure to conditions or circumstances beyond those common to occupa
Thus, the injury is rather strangely defined. The injury must be an egregious one that is to be tested not by the severity of the distress or disabling manifestations but by the severity or traumatizing likelihood of the particular causative circumstances of employment. It is not an "injury" no matter how disabling unless it arises from unusual occupational stresses. This is more a rule of evidence that is geared to discovering the probability of harm than to discovering the fact of harm. It is in a sense an objective test — would a person of ordinary sensibilities be emotionally injured or mentally distressed in the absence of the unusual circumstances.
The applicable statute appears to be a codification of the School District No. 1 case, wherein we said:
Thus it is the opinion of this court that mental injury nontraumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience. Only if the "fortuitous event unexpected and unforeseen" can be said to be so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury will liability under ch. 102, Stats., be found.
That case, although not finding a compensable injury, carefully stated:
In refusing to find the employer liable under ch. 102, Stats., in the instant action, however, we do notintend to close the door to those situations in which compensation may be warranted. We do not believe that an average man who, after being criticized and berated by an employer or whomever for a significant period of time, suffers a mental injury should be denied compensation. The common sense viewpoint of the average man would deem such a situation to be accidental and liability would be found under sec. 102.03(l)(a).
Two years later this court, following
School District No. 1,
in
Swiss Colony, Inc. v. ILHR Dept.,
The question presented, however, by this contention is whether the injured party, Jan Jenson, was performing services "growing out of and incidental to . . . her employment" at the time of injury.
The undisputed facts lead overwhelmingly to the conclusion that she was. The attacks upon her took place at village board meetings and in the confines of the village hall, where both worked. Petitioner cites to the record that attacks were made "immediately before the board meeting, immediately after the board meeting," as well as at the board meeting. It would appear from a common sense point of view these were times when Jen-son, by virtue of her duty to be at the board meetings,
As referred to above, Jenson also makes the related argument that her claim is not work connected because it was the result of an attack personal to her — a personal vendettа against her by Little. We think this contention arises from a misunderstanding of the line of cases that hold there is no compensation for injuries or fatalities at the work place when the injury is the result of a condition personal to the worker — an idiopathic condition such as a heart attack from nonwork-related underlying causes.
8
Here, clearly the conduct of Little was integrally
The final misdirected arrow from the bow of the petitioner is that, notwithstanding the fact the claim might otherwise be cognizable under the WCA, Little's conduct constituted an assault.
As stated above, prior to 1978, the WCA was not an injured employee's exclusive remedy against a co-employee. Then sec. 102.03(2), Stats., was amended to provide that a workers compensation claim could be asserted against co-employees. Simultaneously, the legislature set forth an exception that maintained the right in one circumstance for an employee to bring a common law action against a co-employee. The 1978 amendment provided: "This section does not limit the right of an employe to bring action against any coemploye for an assault intended to cause bodily harm." Sections 2 and 3, ch. 195, Laws of 1977, eff. Jan. 1, 1978.
Not only does the petitioner contend that Little's conduct was an assault, but also she asserts that any intentional conduct should be excepted from the WCA's exclusivity provisions as being tantamount to an assault. As demonstrated above, the mere fact that an act is intentional does not deprive it of its accidental nature
There remains the question of whether Little's conduct constituted an assault.
The court of appeals, looking to the question whether Little's actions in berating and criticizing Jen-son, constituted an assault intended to cause bodily harm, answered in the negative. We agree with that conclusion, but find the question to present greater difficulty than that recognized in the court of appeals opinion. That court resorted to prior criminal law cases and relied upon
Meyer v. Briggs,
While agreeing with the result of the court of appeals rationale, i.e., that in this casе there was no assault and, hence, no exception to the exclusivity of the WCA remedy, we are loath in this proceeding to intimate that an actual physical attack, a battery by a co-employee, that causes bodily harm is not exempt from the exclusivity provision.
As the petitioner points out, an ambiguous word in a statute is appropriately understood by resorting to a
Webster's Third New International Dictionary defines the noun "assault" as a "violent attack with nonphysical weapons (as words, arguments, or appeals)." It defines the verb "assault" to include "to attack violently by nonphysical means (as words, arguments, or unfriendly measures)."
The Random House Dictionary, however, defines "assault" as "1. a sudden, violent attack; onslaught . . . 2. An unlawful physical attack upon another; an attempt or offer to do violence to another, with or without battery, . . .." (Emphasis supplied.)
Thus, an assault in dictionary parlance may include a physical attack.
Our purpose, however, is to go beyond a pat definition of "assault," particularly when we find that dictionary definitions are contradictory. Our purpose is to determine, if possible, the legislature's intent. It is difficult to accept the сourt of appeals meaning that "assault" only means a threat to commit physical violence, but not to do physical violence. It would be absurd to hold that there could be an "assault" under the WCA that obviates the exclusivity rule but an actual battery or physical injury by a co-employee would not. Hence, it is necessary to explore the meaning of "assault" not in general legal connotations, or in dictionary terms, but in light of how the word "assault" has been used in the context of prior worker's compensation cases. In this light, it appears that the legislature did not intend to exclude a "battery" from the purview of the exception — that "assault" аs used by the legislature included "battery."
While we do not quarrel with the result reached by the court of appeals, concluding that the conduct in this case was not an assault, the acceptance of the court of appeals reasoning and the definition employed would result in not excepting from the exclusivity rule an assault and battery — a result that the legislature most likely did not intend. We think it inappropriate to conclude, as the inexorable logic of the court of appeals would dictate, that an assault and battery would not avoid the exclusive remedy but a simple nonphysical assault would. Here, however, there was neither. As the court of appeals concluded, there was no assault, and there certainly was no battery. We are not compelled in this case to delineate all the parameters of the legislature's intent in using the term "assault." We doubt, however, in view of prior WCA case law, that the only way to avoid thе exclusivity clause is simple assault. 9
In the instant case the alleged conduct of Little did not constitute an assault upon Jenson under any of the possible definitions.
We conclude, therefore, that the allegations of the complaint set forth facts that state а claim for compensation under the WCA and that there are no material issues of fact that would preclude the grant of summary judgment to the defendant. We hold, as a matter of law, that the conduct of Little did not constitute an assault which would permit an employee to bring a common law cause of action against a co-employee and not be limited exclusively to remedies afforded by the WCA. Under the undisputed facts, the trial court properly granted summary judgment.
By the Court. — Decision affirmed.
Notes
The court of appeals neglected to address plaintiffs contention that the altercations between Jenson and Little were not in the course of employment but rather were the outgrowth of a personal vendetta carried on by Little because his daughter's former boyfriend became a friend of Jenson. We address this ques
This section goes on to provide:
This section does not limit the right of an employe to bring an action against any coemploye for assault intended to cause bodily harm . . ..
The assault exception will be discussed later.
We emphasize that the applicable statutory provisions are those found in Wis. Stats. 1985-86.
Subsequent legislative changes, Laws of 1987, a. 179, rеvised the provision to read: " (c) 'Injury' means mental or physical harm to an employe caused by accident or disease."
The cases cited by the petitioner are largely irrelevant.
Dupler v. Seubert,
Although plaintiff asserts that no intentional act which causes injury is encompassed within the remedy afforded by the WCA, we also note that plaintiff at one point in her brief distinguishes an injury caused by intentional conduct and a tort, such as the one alleged, where the conduct is undertaken with the intent to cause the particular injury — emotional distress. While such a distinction may be relevant in some legal settings, the distinctiоn is irrelevant in Wisconsin worker's compensation jurisprudence. All of the cases cited in the preceding paragraph reveal facts where the apparent intent was to cause the particular injury, yet they were held to be within the purview of WCA.
Also, whether Little intended to cause the particular injury to Jenson is irrelevant under the Act, for, if the
result
— i.e., the actual injury to Jenson — was unexpected by her, Wisconsin law defines such an event as an "accident."
John A. Kaiser Lumber Co. v. Industrial Comm.,
The quoted emphasized portion of sec. 102.01(2)(c), Stats., was removed by the legislative amendments in 1987, but is a part of the statute applicable to this case.
See Cmelak v. Industrial Comm.,
While many batteries are preceded with an assault — a real threat to do bodily harm, some batteries may be out of the blue. Under the legislative intent, as explicated by past case law, such a battery, in the legislature's parlance, may be an assault.